United Nations European HQ in Geneva (Photo: alandj / iStockphoto.com.)
Unequal access to justice is a central concern of the U.S. legal community. The international community, too, is taking note of disparities within the United States. Later this month in Geneva, the United Nations Human Rights Committee will ask the United States to account for its widening civil justice gap. The United States’ response will affect its credibility as a global leader in civil and political rights.
In this country, millions of people who are poor or low-income are left to fend for themselves when facing a crisis such as eviction, foreclosure, domestic violence, termination of subsistence income, loss of child custody or an immigration removal proceeding. Indeed, in the United States, only a small fraction of the civil legal problems experienced by low-income people — fewer than one in five — are addressed with the assistance of legal representation. The result is a crisis in unmet legal needs that disproportionately harms racial minorities, immigrants and women.
The U.S. Constitution does not provide a categorical right to counsel in civil cases, but fundamental fairness in the legal system, including access to counsel, is a basic international human rights principle. In 1992, the United States ratified the International Covenant on Civil and Political Rights. In doing so, it committed itself to, among other things, ensuring meaningful access to justice for all its citizens, including access in civil cases when the interests of justice so require.
The United States will be reviewed on March 13 and 14 for how it is meeting its commitments under this core human rights treaty. Concerned with the civil justice gap in the United States, the U.N. committee of human rights experts conducting the review has put squarely on the agenda the question of what steps this country has taken to improve legal representation in civil proceedings for litigants belonging to racial, ethnic and national minorities, and for victims of domestic violence.
REPEATED INTERNATIONAL INQUIRY
This is not the first time the international community has questioned the United States’ record on access to justice. In 2008, when the country was reviewed for its compliance with an international human rights treaty prohibiting race discrimination, the U.N. experts conducting the review expressed concern over the disproportionate impact the civil justice gap has on vulnerable communities in the United States and recommended that sufficient resources be allocated to alleviate disparities in representation.
The U.S. legal community is well versed in these issues. Its concern with improving access to justice is exemplified by the American Bar Association’s 2006 resolution calling for a right to counsel in civil cases in which basic human needs are at stake, and its adoption in 2010 of Basic Principles for a Right to Counsel in Civil Legal Proceedings and Model Access Act, providing language for state legislators seeking to implement a statutory right to counsel.
In addition, state and local legislatures, access-to-justice commissions and bar associations recently have instituted efforts to address the crisis in civil legal services. For example, the California and Illinois legislatures created multiyear pilot projects to provide and study the impact of counsel in certain kinds of civil cases. The Boston Bar Association completed a set of pilot programs to examine the impact of counsel in eviction cases and Massachusetts legal services programs have begun a new round with funding from the state attorney general. The Maryland Legislature created a task force, staffed by the state’s Access to Justice Commission, charged with making recommendations concerning providing a right to counsel in basic human-needs cases. And this fall, the New York City Council began funding a pilot program to provide legal representation to immigrants in detention and facing deportation.
The Obama administration, too, has taken important steps to address the justice gap. In 2010, it created the Access to Justice Initiative, which works within the U.S. Department of Justice, across federal agencies, and with state and local justice systems to increase access to counsel and legal assistance in both the civil and criminal context. This is a promising start. And there is much more that the federal government can and should do.
To meet its international human rights commitments and ensure ­fundamental fairness in the legal system, the U.S. ­government should adopt reforms at the federal level and support state and local efforts. These include funding thoughtful research to measure and analyze the impact of counsel in civil cases, identifying and disseminating “best practices” at the state and local level to improve meaningful access to civil legal services, and supporting state efforts to establish a right to counsel in certain civil cases.
In addition, the United States must ease restrictions and increase funding for the Legal Services Corp., the primary federal program that provides civil legal aid for the poor. The LSC has nowhere near the resources necessary to respond to the need for legal aid and is so hobbled by restrictions on the types of services its lawyers can provide that it is unable to meet the full legal needs of its clients.
Finally, the Obama administration should support, and Congress should enact, legislation establishing a right to counsel in federal civil cases implicating basic human needs, including a right to appointed counsel for detained immigrants facing deportation. By implementing these and other measures, the United States can begin to bridge the justice gap, uphold the dignity of all Americans and answer the international community’s concerns about its commitment to equal justice under the law.
Risa E. Kaufman is the executive director of the Columbia Law School Human Rights Institute.